NSW Drug Diversion Initiative in need of reform, Aboriginal Legal Service says

The Aboriginal Legal Service urged the NSW government to review police practices and procedures, in particular, the exercise of police discretion, so that initiative can be applied equally and without discrimination in line with recommendations by the Australian Law Reform Commission’s Pathways to Justice inquiry.

“The ALS continues to call for urgent implementation of all recommendations of the NSW ice inquiry, including decriminalisation of drug possession for personal use,” the Aboriginal Legal Service said.

Aboriginal Legal Service NSW/ACT acting chief executive Sharif Deen said: “Experts who work at the coalface have been saying for years: drug use must be approached as a public health issue. Criminal punishment for drug use only clogs up the courts, and it does real harm to people and communities.”

The NSW government introduced the EDDI on 29 February 2024 – allowing NSW police officers to divert people from court towards a health-based response if they are found with small amounts of drugs for personal use, based on the discretion of the individual officer.

This initiative enforces an on-the-spot $400 criminal infringement notice (CIN) and free health support for low-level drug offenders in place of a court notice. This fine is waived if the offender chooses to complete a voluntary telehealth intervention.

In its research released on Monday (30 March), the NSW Bureau of Crime Statistics and Research (BOCSAR) found that in the first 13 months of the initiative, 11,751 people were taken to court by NSW Police for the use or possession of drugs other than cannabis, with fewer than 10 per cent of these people issued a CIN, and diverted from court.

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BOCSAR executive director Jackie Fitzgerald said: “While EDDI is intended to reduce court involvement for low-level drug offences, these findings suggest its reach has so far been limited.”

The bureau said these low diversion rates were largely driven by eligibility criteria, with nearly three-quarters (72 per cent) of people found to be ineligible, mostly because they had another offence at the same time or were carrying more drugs than the small quantity threshold.

Dr Paul Kelaita from the Drug Policy Modelling Program (DPMP) said: “The program’s low reach could be due to police not having sufficient training in the program; to police exercising discretion and choosing (in many cases) to charge instead of fine; or to people who are detected with drugs not being eligible for EDDI.”

“These three potential explanations all have very different solutions; it’s essential we understand the low program reach to understand which changes can make the most impact. For example, if it’s because people are ineligible, removing police discretion will make no difference.”

He said the low reach could potentially become a roadblock and a Trojan horse for decriminalisation reform.

Review of police discretion needed

According to BOCSAR, diversion is particularly low for Aboriginal people, despite the EDDI working only for a very small number of people found in possession of illicit drugs, with only 9 per cent of eligible Aboriginal people diverted from court under the scheme in comparison with 25 per cent of non-Aboriginal people.

“Even when police have the option to divert an Aboriginal person away from court, they are choosing to charge them and force them to face criminal punishment. This flies in the face of the government’s Closing the Gap commitments,” Deen said.

“The Early Drug Diversion Initiative is failing, and it’s especially failing Aboriginal and Torres Strait Islander people.”

According to analysis by the UNSW Social Policy Research Centre, the initiative was diversely employed to suit stakeholders’ interests and commitments.

Kelaita said that despite evidence and expert review that recommended police diversion as a second-best option to decriminalisation, it was taken up as policy.

He said a lack of data on eligibility is a key limitation in understanding how the initiative currently operates and, subsequently, the potential for improving or revising the EDDI.

“The NSW government must also review police practices and procedures – particularly the exercise of police discretion – so that law is applied equally and without discrimination, as recommended by the Australian Law Reform Commission’s Pathways to Justice inquiry,” the Aboriginal Legal Service said.